This debate was brought to life by the recent face off between Mr. Monday Ubani, a former Vice-President of the Nigerian Bar Association (NBA) and the Economic and Financial Crime Commission (EFCC). Mr. Ubani along with a former Senator of the Federal Republic of Nigeria, Hon. Christopher Enai was detained by the Commission for their failure to produce one absconded Dr. Ngozi Olejeme, a former Chairman of the Nigeria Social Insurance Trust Fund (NSITF) who was said to be involved in a N6.4 billion fraud allegation her by the EFCC. The duo were said to have stood as sureties for the woman now on flight. For the benefit of the lay men, we must first and foremost look at what BAIL, SURETY are all about. According to Mrs Oluwatoyin Doherty, the learned author of the book : CRIMINAL PROCEDURE IN NIGERIA- LAW & PRACTICE: “Bail is the procedure by which a person arrested for an offence is released, on security being taken for his appearance on a day and place certain. The issue of of bail arises at three points in the process of administration of criminal justice.Firstly, it arises after a person arrested with or without a warrant of arrest is taken to the police station.The officer in charge of the police station may admit the suspect to bail pending further investigation This is known as police bail. Secondly, it arises after a suspect has been charged to court accused of committing an offence .The accused may be admitted to bail by the court pending the final determination of the case against him. This is known as court bail. Thirdly, it arises after an accused person convicted of an offence has filed an appeal against his conviction .The convicted person may apply for bail pending the determination of his appeal.This is known as court bail pending appeal.” It must be noted that whenever the bail is granted, it always goes with some certain conditions that must be fulfilled by the accused person or defendant in which a surety must be involved.Our leaned teacher and author continues: “A person may be admitted to bail on conditions that he produces one or more persons to enter into a bond for the stated sum.Such person is known as a SURETY.The surety undertakes to pay the money by which he is bound, if the person admitted to bail fails to appear at the designated place.Bail granted on condition that the person admitted to bail enter into a bond or provide sureties or both,is known as bail on recognisance.” It becomes very clear from the above like the day light that any lawyer that offers to stand as surety for anybody or his client should know for sure that he may be embarking on a journey of no return because if the accused or the defendant he stands for disappears into the thin air, he will surely blame himself for rendering such assistance to such client. On this issue involving Mr. Ubani, there has been a cold war between the NBA and the EFCC after the arrest and detention of its former Vice President who along with his co-surety engaged a lawyer to file suit on their behalf for the enforcement of their fundamental rights having being detained for several days without being charged to court by the EFCC.An order of court subsequently came ordering the EFCC to either charge them to court or release them on bail. Until few days ago the EFCC seemed to be dragging its legs to comply with the court order. According to the NBA in a release: “It has been 3 days after the order of the court was made and the EFCC has characteristically shown daring disobedience to the order of court by refusing to release Monday Ubani on bail or charge him to court….The agency’s penchant for disobedience to orders of court is an ominous threat to rule of law and impacts negatively on Nigeria’s investment environment” The EFFC on its part also did not maintain sealed lips as it also fired back at the NBA that the association should review the facts of the case rather than castigating it.That the order in question was obtained ex-parte by Mr. Ubani’s counsel while their were three pending applications to be argued before the court.. Citing Rule 37(1) of the Rule of the Professional Conduct which says: “Where a lawyer undertakes the defence of a person accused of a crime, he shall exert himself, by all fair and honourable means, to put before the court all matters that are necessary in the interest of justice, but shall not stand or offer to stand bail for a person for whom he or a person in his law firm is appearing” Based on this provision of RPC, the EFCC said the NBA ought to punish Ubani for what he did rather than vilifying it.With the release of Mr. Ubani from the EFCC’s detention, he said the reason for standing surety for his said client was because of the fact that he was the one that advised her to return to the country to honour the EFCC’s invitation and that the EFCC had done everything to frustrate the bail of her client who ran away when the EFCC invaded her residence. This issue of Mr. Ubani standing surety for his client has continued to generate controversies among lawyers. According to Mr. Ubani and Senator Enai’s lawyer, Chief Mike Ozekhome,SAN in his write up titled : “Monday Onyekachi Ubani and Hon. Christopher Enai: When State apparatus is wrongly deployed to Persecute Innocent Citizens”: “…Mr. Ubani, a lawyer of many years standing .had in the course of his professional duties and as a responsible man, stood surety for his client as specifically demanded by the Acting Chairman of the EFCC, Mr Ibrahim Magu, who had rejected two Civil Servants earlier demanded by the same EFCC….Standing surety for a client who has absconded without the surety’s knowledge is not a crime, but a civil matter.To underscore that this is a civil case , the EFCC has itself filed a motion before the same Justice Orji, to compel Ubani and Hon. Christopher Enai to forfeit the bail bond of N1 Billion,they signed on behalf of their client.The present situation is therefore akin to persecution and not prosecution…” While some lawyers have argued that there is no big deal in standing as sureties for their clients, some have held contrary views and I must confess I belong to the latter school of thought.Why must I stick my neck for a client in that circumstances?Can you trust a client or anybody to that extent that if you stand surety for him or her , he or she will not abscond and put your own personal liberty at stake? Can you afford being detained for 48 hours or more because your client whom you have stood surety for has disappeared into the thin air? Can you afford developing High Blood Pressure (HBP) and collapsing in detention and subsequently rushing to the hospital to save your life? God forbids, if surety gives up the ghost in that circumstance, will the absconded client on flight not continue to breath on the surface of the earth and continue to enjoy himself or herself ? Where do I have such huge amount of money to forfeit to the EFCC? Standing surety for a client in the course of my professional duties, please count me out. Why? Because this is one of the things that I learnt from one of the great law teachers of all times, Mrs Oluwatoyin Doherty (supra) when she said in her book (supra) that: “As a rule of practice, counsel appearing for the accused is not allowed by court to stand as surety for his client.Counsel is only permitted to recommend to the court suitable persons to be admitted as sureties for the accused.” I think this is one of the hazards in the profession that lawyers must seriously avoid. We have on this platform in the past discussed some others hazards which if care is not taken may affect lawyers in the course of discharging their professional duties. If you can remember vividly, a senior was sent to jail for trying to influence his client’s case to be assigned to a particular judge.Another senior lawyer was debarred for many years while struggling to gain political victory for his client while the other two judges involved got compulsory retirement from service. Fortunately for the said senior lawyer the Supreme Court has recently set aside his debarment. Can you imagine what he would have got through in those years of debarment? Do you remember another case discussed on this platform, where a lawyer was sent to jail for contempt in the course of discharging his professional duties to his client.We can go on and on to cite several other examples, these are not meant to ridicule anybody but for us to great learn lessons of life and exercise restraint and caution whenever it become necessary in the course of discharging our profession duties. Let me end this segment by quoting from the paper titled : “The Nigerian Law and the Challenge of Nation Building-2019 and Beyond” , delivered by Vice Chancellor of the Lagos State University, Professor Olanrewaju Fagbohun,SAN during the 1st Pa Tunji Gomez Memorial Lecture held recently : “…We are daily confronted with the constant presence of corruption and misconduct alleged either against legal practitioners or judges .Unlike yesteryears when lawyers were seen as the conscience of the nation,today,there is a crisis of consciousness, a crisis of integrity, character and competence.Today ,the legal profession that is supposed to be venerated by members of the society is now the subject of satirical poems bordering on reprehensible conducts.By training ,lawyers are engineered to induce the personal consciousness of others to enable to reach the ideal.Regrettably ,the false consciousness that is now seriously haunting and hurting her…” The present generation of the practitioners of law must reflect on this. HON JUSTICE MAMMAN NASIR (GCON) GOES HOME On 13th April 2019, Hon. Justice Mamman Nasir, Galadiman Katsina was eventually visited by what is certain for every human being and as such took his exit from the world.The demise of Justice Nasir marks an end of an era having lived for 90 years on the surface of the earth. Justice Nasir was called to the bar at the Lincoln’s Inn in 1956. He later joined the Northern Nigeria Ministry of Justice as crown counsel and rose through the rank to later become the Minister of Justice for the Northern Nigeria.In 1967 he became the Director of Public Prosecution (DPP) and later Solicitor General for the North Central State . In 1975 he was elevated to the Supreme Court as a Justice of that court. Upon the death on the bench of Hon. Justice Dan Ibekwe as the first President of the newly created Court of Appeal, Justice Nasir was seconded to the Court of Appeal to succeed late Justice Ibekwe as the President of that court and remained there until he retired in 1992. Justice Nasir while serving on the bence contributed immensely along with the other Justices of the Supreme Court to see to the peaceful co-existence among the Nigerian people as mentioned in the book titled: LEGAL LUMINARIES: “In 1978, when there was a debate among members in the Constituent Assembly over the establishment of a Federal Sharia Court of Appeal to run parallel with the Federal Court of Appeal .While the Muslims supported the proposal, the Non Muslims opposed the proposal and the situation then nearly led to serious crisis as Muslim members walked out of the Constituent Assembly and the situation became very tense. Justice Bello along with Justice Mamman Nasir and Justice Buba Ardo came out with a workable solution and compromise that instead of having a separate Federal Sharia Court of Appeal, a division should be created under the Federal Court of Appeal to be known as Sharia Division to be manned by Justices learned in both Sharia and Common Law. This arrangement was accepted, saved the situation and subsequently led to the appointment and elevation of Justices Basir Wali and Uthman Muhammed to the Court of Appeal.” The late legal icon demonstrated his brilliant knowledge of law through various judgments he delivered both at the Supreme Court and while presiding at the Court of Appeal as its President. These judgments can be found in the many Law Reports. With the departure of Justice Mamman Nasir, we pray God to give his family, Nigeria as a whole particularly the Legal Profession, the fortitude to bear the great loss. May Allah bless the soul of Justice Mamman Nasir ! REMARKABLE PRONOUNCEMENT ON STATEMENT OF ACCUSED PERSON “In the case at hand there is no evidence cogent enough to warrant our choosing the accuracy of one witness as against the other. On this score also we are of the view that the prosecution has not been able to prove the charge beyond reasonable doubt. In conclusion, we are of the opinion that this appeal should succeed. As the learned trial judge had laid emphasis in the judgment on the statement of the appellant we should express an opinion on this statement. In reading the record we noticed that the procedure followed when the accused persons were giving evidence was for each one of them to adopt the statement he made to the police earlier. For example the appellant in his evidence- in- chief said: “I made the statement to the police. Exhibit, I adopt Exhibit 4 as part of my defence. I have something to add to Exhibit 4. There were certain things I told the police but which they did not include in Exhibit 4” .We consider this procedure to be irregular and unhelpful to the court and certainly unhelpful to the accused himself.” Per NASIR, JSC (as he then was) in William Vs The State (1975) NSCC Vol. 9 Pg. 403 Lines 1-17 THE SETTLED PRINCIPLE OF LAW On discretionary power of court to grant bail to an accused person “It is trite that the decision on whether or not to release or admit to bail an accused person standing or facing trial for a criminal offence is within the discretion of the trial court before which the application for bail is made or brought. The discretion like all other judicial discretion is not exercised arbitrarily but is required to be judiciously and judicially exercised based on some established principles.” See IBEKWE Vs F.R.N (2004) ALL FWLR (Pt. 213) Pg. 1804 Paras F-G HAVE YOU OBTAINED YOUR COPIES? For more Settled Principles of Law and Remarkable Pronouncements from our Supreme Court Jurists from 1956-2016, obtain or order for your copies of LAW PRACTICE KIT and LEGAL LUMINARIES. Call or text 08055476823, 08164683735 or email: [email protected] Your library is incomplete without these books. 14th April 2019]]>

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